JAMEELA BEEVI Vs. HAMEED KUNJU

JUDGEMENT

(1.) PETITIONER is the plaintiff in O.S.No.470 of 2000 on the file of the Munsiff Court, Karunagappally. Respondent is the defendant in the suit. Suit was filed for permanent perpetual injunction restraining the defendant from obstructing ingress and egress to the plaint schedule property by constructing compound wall, fencing, building etc. on the north-eastern corner of A & B schedule properties and on the western boundary of plaint C schedule. The relief of mandatory injunction was also sought to remove the fencing put up on the southern side of plaint C schedule property. Ext.P1 is the copy of the plaint. Plaint AB schedule property is having an extent of 9.5 cents. Plaintiff purchased the plaint schedule property from the defendant by sale deed dated 4.4.1986. Subsequently, the plaintiff constructed a residential building in the property. The defendant's property is lying on the northern side of plaintiff's property. Further north is a Panchayath road. The plaintiff is using 4 feet pathway provided in the sale deed which starts from the Panchayath road on the north of defendant's property. The pathway begins from the north western corner of defendant's property, passes through the western boundary of the defendant's property, reaches south-west corner then deviate to eastern side and reaches the plaintiff's property. The commissioner deputed in the suit submitted a report and sketch which shows the alignment of the pathway that leads to the plaintiff's property. Ext.P2 is the report and sketch of the commissioner.

(2.) IN the plaint it is alleged that the defendant obstructed the said pathway by putting up a fence at the entrance. As I said earlier, the entrance portion is on the north-western corner of defendant's property that touches the Panchayath road. Suit was filed for prohibitory as well as mandatory injunction. At the instance of the plaintiff the advocate commissioner appointed inspected the site and submitted a report and sketch. Ext.P2 is the report and sketch. The defendant entered appearance in the suit. Before filing the written statement the parties to the suit filed a compromise petition and the court passed a compromise decree in terms of the compromise petition. Ext.P3 is the compromise decree. Compromise petition filed is attached to Ext.P3 decree.

(3.) THE facts alleged in I.A.No.189 of 2008 are as follows: THE plaintiff entrusted the case to Adv.Mr.G.Thulaseedharan. Even before the filing of the written statement by the defendant, plaintiff's counsel obtained her signature in the compromise petition and filed it before the court. She was told that the compromise will be helpful to her in resolving the dispute. THE compromise petition containing the terms of the compromise was not read over to her and the counsel did not make her understand the contents of the compromise petition. THE court passed a decree in terms of the compromise. It is averred that after obtaining the copy of the decree she had occasion to understand the contents of the compromise decree. When the compromise petition was read over to her she came to know that the terms recorded are most prejudicial to her interest. On a perusal of the decree she came to know there was no provision for removal of the fence put up by the defendant blocking the pathway. Further there is no provision for removal of six trees in the way which is causing obstructions for free ingress and egress. Another provision in the compromise is that she will get a free ingress and egress only when the defendant cut and remove the trees standing in the pathway. Moreover, from the compromise it can be seen that the alignment of the pathway was also changed. THE alignment of the pathway was shifted from the extreme western side of the defendant's property towards little east. In the compromise petition the user of the pathway is restricted to the petitioner and her predecessor.